Houston Bar Association - Family Law Section

Gray's Interesting Cases - May 2007

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  1. Chacon v. Chacon, No. 08-06-00056-CV, not yet published (CA, El Paso). The divorce trial was heard by an A.J. who, among other things, found that H had used sep. prop. to purchase the parties' homestead by paying $15,000 as a down payment. H requested reimbursement of the $15,000 when the house sold. (You know H is in trouble when his atty asks for reimbursement instead of a claim of separated property per Gleich v. Bongio, 99/881/2. It always amazes me how many attys and judges don't know the difference between reimbursement and partial ownership by a party's separate estate.) After the A.J. announced his judgment, H appealed but he did not complain of the reimbursement or the characterization of the $15,000 down payment. On appeal the T/C changed the $15,000 from separate to community property and disallowed the reimbursement. H appeals claiming the T/C had no jurisdiction to change the A.J.'s findings on the $15,000 or the reimbursement as these issues were not raised in his appeal.

    Affirmed. In a case of first impression, the CA held that although §201.015(b) limits the appealing party's ability to raise issues on appeal which were not specified in his/her objections to the A.J.'s findings and conclusions, §201.015 (d) does not limit what the T/C may find or do in the de novo appeal hearing.

    Comment - WOW! Both parties appear before the judge on points a & b and the T/C blindsides both of them on points x, y, & z which neither of them complained about nor were they prepared to discuss or offer evidence on x, y, & z. Doesn't seem fair to me but what do I know. I was just the author of the Master's/A.J.'s statute. I can assure you that I contemplated that a T/C couldn't blindside the parties on points not specified in the appeal or counter-appeal. It will be interesting to see if other CAs follow this blindside rule.


  2. Gana v. Gana, No. 14-05-00601-CV, will not be published - memo opinion (CA, Houston - 14th). H & W divorced trial starts on 2/15/05 and the T/C rendered its decision 2 days later. Part of the T/C's judgment was that a house was to be sold and the proceeds divided 50-50 between the parties. H filed a MNT claiming that the house was his separate property thus the T/C had no jurisdiction or authority to order it sold. MNT denied. The T/C then signed findings of fact & conclusions of law which said: (1) no evidence was admitted during trial regarding the character of any of the parties' property and (2) the property division was just and right irrespective of the characterization if any item of property as sep. or community. Sounds like H is going to lose as the community presumption is going to prevail as H didn't prove the separate character of the house by clear and convincing evidence. Despite the T/C's findings of no character evidence, H showed the appellate court that he testified that he bought the house 6 years before he married W and W testified that H owned the house before marriage. Facing 's judicial admission that the house was H's separate property, W then argues that Pace (160/706/3) and Vandiver (4/300/3) hold that when a T/C finds that a property division is just and right regardless of any mischaracterization of the property divided, such error doesn't affect the just and right division unless the appealing party can show how the error had more than a de minimus impact on the just and right division (which W claims H didn't do in this appeal.) How some attorneys can make such an argument with a straight face astonishes me.

    CA reverses. Although Pace and Vandiver say what W's atty say they say, there's one problem. Both cases involved mischaracterization of community property as separate property. Here we have the opposite - characterizing separate property as community property which is always reversible error without a showing of harm.

    Comment - I can't understand how the T/C denied the MNT if H's attorneys directed the T/C to the trial record where both H & W testified that H bought this house before marriage. How could W's attorney draw findings that there was no evidence produced as to the property character? Just another slight glitch in the judicial system. W's trial atty didn't draw up the findings or argue the MNT as he was disbarred 4 days before the T/C signed the divorce decree.


  3. Miles v. Peacock and the A.G, No. 01-06-00313-CV, not yet published (CA, Houston - 1st) H& W married in '85. Child born in '90. Divorce filed in '04 in which W claims that X is the child's father. X is served with citation but fails to file an answer or appear at trial. At trial's end X is found to be child's father (there was a paternity test confirming X's paternity); W and X were designated JMC of the child but X was denied any visitation as such denial was in the child's best interest; X was ordered to pay $1,000/mo in child support as that is what he had been paying (no evidence was introduced as to what X earned or even if he was employed); X was ordered to obtain a $50,000 life ins. policy on himself payable to W for the child's benefit plus the standard medical insurance provisions and W was awarded a $24,000 judgment against X for retroactive c/s. H filed a restricted appeal.

    Reversed. As there was no evidence as to X's net resources, the T/C couldn't make a c/s order in excess of minimum wages (Newberry, 146/233/3) nor could it award retroactive c/s or make provisions on life and health insurance. Again there was no evidence produced regarding the child's best interest, thus the T/C has to award X a SPO which is presumed to be in the child's best interest. In re S.C., WL 3499223.

    Comment - Once again to whom do you award the greater fault? W's atty for failure to prove his case on X's net resources and the child's best interest or the T/C's failure to require W to produce the evidence to support the T/C's judgment? Me, I pick W's attorney but it's a close call. This case was so bad that before the appellate ct., even the A.G. conceded that the case should be reversed. (Hopefully this was not the first nor the last time the A.G. was so candid with a reviewing court but why wasn't the A.G. so candid before the T/C?) For the umpteenth time folks, prove your case with evidence even in a default matter.


  4. In Re Sanchez, No. 04-06-00809-CV, not yet published (CA, San Antonio). The June '06 paternity judgment between M & F awarded M the right to pick the child's primary residence subject to F's right to either one or three overnight visits per week until Dec. '06 when F had a SPO. At the time of this judgment M was attending vocational training where she was out of town Monday thru Friday during which time she left the child with her parents. In Aug. '06 F filed a motion to modify with a request for temp. orders. After hearing that the child lived with the grandparents during the week and F was available to care for the child (he was out of work due to an injury), the TC entered a temp. order awarding H temp. custody of the child from Sunday evening to Friday evening. The T/C reasoned that a child should be with one of its parents rather than with its grandparents when a parent is available, and is willing, to care for the child. M files a mandamus to set aside the temp. order.

    Granted. §156.006(b)(1) provides that while a modification suit is pending, the T/C can't enter temporary orders that in effect change the right to designation of the child's primary residence unless it is necessary because the present circumstances would impair the child's physical health or emotional development. Leaving the child with M's parents during the week rather than leaving the child with his/her father doesn't satisfy the impairment requirements of §156.006(b)(1)